Contesting a Will When the Estate is Left to the Surviving Spouse
It is fairly common for a husband and wife to leave their entire estate to each other, with the first deceased parent leaving little or nothing to the children. Often, this is because each parent is relying on the other to leave their remaining property to the children. In some situations, though, the first parent to die has intentionally disinherited one or more of the children by leaving everything to the surviving spouse. If you are the child of a parent that disinherited you by leaving everything to their surviving spouse, think carefully about the ramifications of contesting the will. While you may be tempted to contest your deceased parent's will, filing a claim against the probate estate may anger the surviving spouse so much that you will be guaranteed to be cut out of their will as well.
When you contest a will, you must do battle with the executor of the estate. The executor is often the same person who inherited the estate. Contesting a will involves litigation which can cause irreparable damage to family relationships. If the deceased left his or her entire estate to the surviving spouse, you will be attempting to take away money and property from your parent or stepparent. Whatever the status of your relationship with your parent or stepparent before the estate litigation, they will undoubtedly feel less charitable toward you afterward. If your deceased parent's estate plan gives the surviving spouse full control over estate assets, the surviving spouse may be able to disinherit you completely, thereby preventing you from receiving any inheritance of your familyís property.If you are in this situation, you should also be aware of the risk of losing your will contest. If your will contest is unsuccessful, the surviving spouse could make a will or living trust that ensures you wonít receive any property from either your deceased parent's estate or the surviving parentís estate. To continue, see heirs and beneficiaries.
Can You Win a Will Contest?
Probate courts make every effort to enforce a testatorís will. They interpret wills with the presumption that the last will reflects the testatorís intentions regarding his property. Unless your attorney has advised you have an extremely good chance of winning your case, the more prudent course of action may be to focus on mending your relationship with your surviving parent or stepparent in hopes you will eventually be given your fair share of family property. To learn more about will contests, visit our Will and Trust Disputes page.
Contesting a Will Based on Undue Influence
If you were cut out of an inheritance or the amount of your inheritance was reduced as the result of someone improperly exercising influence over the testator to change his estate plan, you may be able to file a will contest on the grounds of undue influence. To learn more about these types of lawsuits, see our page on Undue Influence.
Disinherited By Parent
If one of your parents has passed way, you may still be disinherited by your surviving parent. This can happen for a number of reasons. One common reason is the influence of someone that has frequent contact with your parent, such as a sibling, friend, neighbor, caregiver or new spouse. If this happens, you may have questions about the inheritance your other parent wanted you to receive. Adult children in this situation often want to know how to get a copy of the will. For information, see
Deceased Parents Will.It is also important to be aware that your parents can disinherit you in a number of ways other than by using a will or trust. For example, your parent may make gifts of money or property to others during his or her lifetime that will not pass through the estate. Your surviving parent may also quickly spend through assets your other parent intended you to inherit. For more on these issues, see
Disinherited by Parent.